The appellant, John Cranford, and Charlie Burns were jointly indicted b3r the grand jury of Newton Corner for the crime of -murder in the first degree in the killing of one Lige Roberts. Burns was tried separately at a former term of the court and was convicted of murdеr in the first degree and sentenced to imprisonment for life in the State Penitentiary. He appealed to this court, and the judgment of the trial court was affirmed. Burns v. State,
One of the principal grounds urged for reversal b3r learned counsel for appellant in his oral argument before the court was that there was no testimony whatever on the part of thе State tending to connect the appellant with the commission of the crime. The burden was upon the State to prove that appellant was a particeps criminis in the killing of Roberts. This, it must be conceded, the State failed to do by the dying declarations of Roberts or by any other direct evidence. The missing link in the dying declarations which fails to connect the appellant with' Burns in the killing of Roberts, it occurs to us, has been supplied by other circumstances and the testimony of the appellant himself. In the dying declarations of the deceased he further stated, “They aimed to kill me. They didn’t think I would be able to come'back to the house and tell who done it.’ This tends to prove that there was more than оne present when the shooting occurred. The deceased further said that he saw Charlie Burns and John Cranford on the porch at Sol Burns’ house that evening before the' shooting occurred that night.
Mrs. Grace Estepp, a witness for the Statе, testified that John Cranford and Charlie Burns were at her home on the afternoon before Roberts was killed that night. They had a gun with them on that occasion. They left her place, going toward the Cranford home.
Denver Cowan, a witness for the State, testified that he was at the Cranford home the night Lige Roberts was killed, and that he saw John Cranford and Charlie Burns together at the Cranford home on that occasion.
The appellant himself testified that he was on the porch at Sol Burns’ home, with Charlie Burns, at the time Lige Roberts passed in the afternoon preceding the night of the killing of Roberts. He was with Charlie Burns in the Cranford home on Saturday night until about one-thirtv o’clock Sunday morning, after which the appellant, Chester Burns, and others stаyed with Charlie Burns until about sunup. In fact, the testimony of the appellant himself shows that he was in the immediate presence of Charlie Burns from early Saturday morning until Sunday morning at sunup, and he testified that he knew that Charlie Burns did not kill Lige Roberts because he was with Burns all the time, and that if Burns did the killing witness was with him..
Now the dying declarations of the deceased were sufficient to warrant the jury in finding that Burns killed Lige Roberts, and these declarations were also sufficient to show that another was present, and since appellant himself testified that he was with Charlie Burns all the time during the night Roberts was killed, and knew that Burns did hot kill him, it was within the province of the jury to believe, from Roberts’ dying declarations, that Burns killed Roberts, and to accept appellant’s statement that if Burns did kill Roberts he was with him, and to disbelieve him when he said that Burns did not kill Roberts.
The jury were the sole judges of the credibility of the witnesses and of the weight to be given their testimony, They had a right to say that appellant was swearing falsely when he testified that Burns was nоt present and did not kill Roberts on Saturday night, but that appellant was swearing the truth when he stated that he was with Burns all the time during the night Roberts was killed. Hence the jury had the right to conclude that appellant was present when Roberts was killed, and that hе participated in the killing.
The appellant presented eleven separate prayers for instructions, which the court refused. Some of them were argumentative in form, and were therefore properly refused by the court. Such of these as were correct declarations of -law were fully covered by instructions which the court gave. Counsel for appellant, in his oral argument, especially stressed as error the refusal of the court to give thе prayer for instruction on the presumption of innocence. That prayer is as follows:
“11: The defendant is presumed to be innocent, and this presumption is not to be treated as an idle declaration of law. It clings to the defendаnt throughout the trial and within itself must cause you, under your oaths, to acquit the defendant and return a verdict of ‘not guilty’ unless overturned by proof sufficient, by its probative force, to convince you of his guilt beyond all reasonable doubt.”
The court instruсted the jury, in substance, that before they could convict the defendant they would have to believe beyond a reasonable doubt that lie killed Roberts, as charged in the indictment; that, if they had a reasonable doubt of his guilt, it was their duty to aсquit him; that they must give the defendant the benefit of every reasonable doubt. The court then defined “reasonable doubt” as follows: “Reasonable doubt is not any possible or imaginary doubt hatched up for the purpose of an acquittal, because everything that depends upon human testimony is susceptible of some possible doubt. To be convinced beyond a reasonable doubt is that state of the case which, after entire consideration of the testimony, leaves the minds of the jurors in that condition that they feel an ¡abiding conviction to a moral certainty of the truth of the ¡charge.”
The court further instructed the jury: “I instruct you that the indictment in this case is no evidence of defendant’s guilt, and you will not cоnsider it as evidence in the case, as it is only the means by which the defendant is brought into court to answer the charge against him.”
The defendant is presumed to be innocent, and this presumption attends him throughout the trial as evidence in his favor, аnd entitles him to an acquittal unless the State ¡adduces evidence which convinces the jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged. The above plain declaration of law needs no wordy amрlification to simplify it. No rule of law correctly expressed to which the defendant is entitled is to be treated as an idle declaration. That goes without saying. A rule of law so important to the accused as the presumption of innocence argues its own weight and significance to the jury. When the defendant undertakes to enlarge upon it by asking the court to tell the jury that “this presumption is not to be treated as an idle declaration of law * * * and within itself must cause you undеr your oaths to acquit,” etc., the instruction assumes an argumentative form.’ By such form the accused seeks to have the court put undue emphasis upon the instruction on the presumption of innocence, and give it primacy over other instructions. At least it occurs to us that such might be the dangerous implication. For instance, might not the jury say: “The court tells us in an instruction that the defendant is presumed to be innocent, and this presumption is not to be treated as an-idle declаration .of law. What about other instructions declaring rules for our guidance? Does the court mean to imply that they are idle declarations?” All of the instructions of the court are of equal importance, and, as we have said, none of them can be considered as idle declarations. The instruction being argumentative in form, it was not prejudicial error to refuse it. Nordin v. State,
Furthermore, we have set forth the 'instructions which the court gave on reasonable doubt, and the one to the effect that the indictment was only an accusation and not evidence against the accused. These instructions clearly show that the burden was put upon the State to prove the crime charged beyond a reasonable doubt, and reasonable doubt was correctly defined. In Monk v. State,
The instructions on the burden of proof and reason-' able doubt are accurately expressed. Finding no prejudicial error in the record, let the judgment be affirmed.